View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by BCU Open Access The intractably unknowable nature of law: Kadi, Kafka and the law’s competing claims to authority Luke Mason [Final accepted version] Citation: Luke Mason, ‘The Intractably Unknowable Nature of Law : Kadi, Kafka, and the Law’s Competing Claims to Authority’ in Matej Avbelj and others (eds), Kadi on Trial: A Multifaceted Analysis of the Kadi Trial (Routledge 2014). Abstract: This chapter draws upon the similarities between Mr Kadi’s case and that of the protagonist of Franz Kafka’s The Trial, Josef K., to consider what such cases tell us about the nature of law in general. Constructing the idea of law as experience, depicted by Kafka in his broader œuvre, the chapter seeks to understand how the law, much vaunted as principled, rational and just, can produce the perception for those subject to it that it is in fact unknowable and inaccessible. The chapter argues that despite the ‘happy ending’ for our protagonist in the Kadi saga, the law produces this experience for those who are subject to it by virtue of its competing claims to authority. This internal conflict is neglected by mainstream legal theory, which tends to focus exclusively on either the law’s claim to direct behaviour in advance or its claim to judge behaviour after the fact. In this way, Kadi is not only an extremely important case from myriad inter- and intra-systemic doctrinal perspectives, but also a fascinating case study to interrogate the nature of law itself. The Kadi saga demonstrates the legal system’s ability to produce just outcomes in the face of unjust laws, but also its potential, in the increasingly complex and fragmented legal constellation, to exacerbate the unknowable and inaccessible nature of law as experienced by those who are subject to it. This chapter goes beyond the wide-ranging issues of constitutional theory usually discussed in relation to such cases as Kadi to ask more a more abstract question about the nature of law as a social artefact which makes demands of people who are not granted access to the inner workings of the legal system. - 1 - Table of Contents 1. Introducing Kadi, A new production of Kafka’s The Trial, starring Mr Kadi as Josef K. ..........2 2. Kafka and the Law .......................................................................................................................3 3. Kafka’s vision of law as experience: unknowable and inaccessible............................................6 4. Kadi in the light of Kafka’s theory of law ..................................................................................8 5. Making sense of Kafka’s theory of law: The law’s dual claim to authority ................................9 6. Kafka, Kadi and the experience of law in post-modernity ........................................................11 1. Introducing Kadi, A new production of Kafka’s The Trial, starring Mr Kadi as Josef K. The denouement of Kadi II1 in the Grand Chamber of the Court of Justice might be read as the Disneyfication of Kafka’s The Trial,2 a happy ending for our downtrodden protagonist. In Kafka’s famous tale, a man facing mysterious, seemingly unknowable accusations and a Byzantine legal system with no apparent means of redress or rectification is eventually executed with none of the accusations ever having become any clearer. In Kadi II, the Court’s forceful reconfirmation and aggressive application of the principle of ‘full review’ laid down by the same judicial body in Kadi I3 meant that Mr Kadi, originally facing similarly opaque accusations, was able to rely on his own ‘trial’ to escape this nightmarish scenario by having the Court strike down the measures applied to him. Indeed, the Court, in underlining the importance of the fundamental principle of effective judicial protection,4 in particular in the face of complex questions of intersystemic supremacy5 between legal systems and the delicate nature of anti- terrorism measures, might be seen as casting as antithetical to the values of the EU legal order the experience of law as unknowable and inaccessible which Kafka depicts so powerfully. 1 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission, Council and United Kingdom v. Kadi, judgment of the Grand Chamber of the CJEU of 18 July 2013, NYR, hereinafter, Kadi II 2 Franz Kafka, The Trial (David Wyllie tr, Echo Library 2007) 3 Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat [2008] ECR I-06351, hereinafter, Kadi I, at para 326: ‘the Community judicature must, in accordance with the powers conferred on it by the EC Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts’. 4 Kadi II, at para 133-134. 5 Ibid. The court, at 133, seems to be making the point that effective judicial protection must be guaranteed by the EU legal order due to the fact that the UN Security Council’s procedures do not provide such protection. In this manner, the Security Council procedures seem to fail the Court’s solange test. Much of the discussion of Kadi I focused on the solange aspects of the judgment and the competing claims for supremacy in the international legal order. See in particular N Türküler Isiksel, ‘Fundamental Rights in the EU After Kadi and Al Barakaat’ (2010) 16 European law journal 551; Grainne De Burca, ‘European Court of Justice and the International Legal Order After Kadi, The’ (2010) 51 Harv Int’l LJ 1 - 2 - However, it would be hasty to focus solely on the happy outcome (for Kadi, our own K.) in this particular case in seeking to understand what Kadi might tell us about the law when understood in the light of Kafka’s work. This chapter takes advantage of the striking similarities between the cases of Mr Kadi and Josef K., and indeed their contrasting conclusions, to delve into the insights of Franz Kafka’s fictional depictions of the law. These focused heavily, among other themes, on the experience of law for those who are subject to the legal system’s demands but who do not have, at that moment at least, privileged access to its inner workings. This vision of law, as experienced by non-lawyers in the real world, is one not always fully considered by legal theorists until they become apparent in cases such as Kadi. While Kadi demonstrates the law’s innate ability to ‘redeem’ itself in such circumstances, the case should also bring home to us the inherent unknowability and inaccessibility of the law for those who are subject to it, regardless of its myriad virtues so often highlighted by legal theorists. Rather, therefore, than contributing to the literature on Kadi which focuses on intra- and inter- systemic normative conundra, this chapter seeks to understand law as it is experienced as a social artefact which primarily serves and seeks to regulate the actions of people who are not lawyers. It will highlight the complex dual claim to authority which law makes of those subject to it, an apparent paradox neglected by legal theorists because of the law’s own apparent internal ability to dissolve it. Because the law seeks to regulate behaviour ex ante by laying down standards, while also attempting to judge behaviour ex post through adjudication, law is experienced much of the time in the manner depicted in Kafka’s The Trial and brought out in the real-life case of Kadi. Legal systems are not blind to these dangers, however, and this Kaskaesque experience of law is often seen by Courts as contrary to fundamental principles which legal systems seek to uphold. However, while such cases might produce happy endings for those such as Mr Kadi, the dual claims to authority which the law makes are always present; they are the essence of legal systems as we know them. Finally, this chapter will draw further on the Kadi saga to demonstrate that, beyond these conceptual concerns, certain empirically observable contemporary trends within the law are contributing additional complexity to this problem. Law is becoming more difficult to discover as we move from Kafka’s already troubling modernity into a post-modern legal phase. The law’s content seems to be fragmenting and growing in complexity as it becomes the tool of a technocratically driven world of regulation. At the same time, adjudication is also made more complex by a growing number of competing legal sources claiming entrenched or superior status. While these developments might carry the promise of better laws and better legal outcomes from a substantive perspective, they exacerbate the unknowability of law as it is experienced by people such as Kafka’s Josef K. and our own Mr Kadi. - 3 - 2. Kafka and the Law The similarity between the ordeal of Mr Kadi and that of Josef K., the protagonist of Kafka’s The Trial, has been pointed out elsewhere.6 Kafka’s work, the meaning and significance of which will be discussed in this section, was described by WH Auden as representing for the Twentieth Century that which the work of Shakespeare and Dante represented for their own.7 The influence of Kafka’s work has entered into mainstream Western culture to such an extent that the term ‘Kafkaesque’ is routinely used to describe situations of impenetrable bureaucracy and the more general feeling of hopelessness of the individual in the face of modernity and its intimidating institutions. With this in mind, it would not be far-fetched to think that the Court in Kadi would also have apprehended the obvious Kafkaesque elements of Mr Kadi’s now well documented predicament: his assets had been frozen by a lex specialis, yet he possessed no real knowledge of what he was accused of, nor a clear path for challenging the measures in question.